I am an administrator in a middle school and one of our teachers (she is actually the president of the teachers’ union) came to me to report an ongoing struggle she is having in her classroom. She wanted to inform me that two bilingual students have been harassing another student in the classroom. The problem is that they are doing it in Spanish. The teacher does not speak Spanish, but had several students in the class come to her to report what was being said. She told me that she wants to tell these two students that, moving forward, they are not allowed to speak Spanish in her classroom. They are both extremely skilled in the English language, and she thinks that they are only speaking in Spanish when they want to use inappropriate language, including their harassing statements to the other student. Can she establish “English Only” as a rule in her classroom?

Ayuda Por Favor

Dear Ayuda:

Thank you for your question. For once, I can give a simple answer. Yes. Under these circumstances, she can establish the proposed English-only rule. But wait! There’s more!

The key here is that the teacher has a legitimate reason for the requirement. In some circumstances, an English-only rule will be considered discriminatory. However, here, the teacher is concerned that these students not be permitted to harass another student or otherwise use language that is inappropriate by using another language. Given that legitimate concern, there is no question that the teacher may establish this rule in her classroom.

As discussed below, educators have some flexibility in adopting English-only rules for instructional purposes. However, in this context, the EEOC position on English-only rules in the workplace provides a helpful framework for analysis. Specifically, the EEOC has ruled that a strict ban on speaking other languages in the workplace is not permissible because such a ban can be discriminatory against workers whose first language is not English. However, the EEOC has also ruled that employers may have legitimate business interests that justify a limited prohibition against speaking other languages at work. The Connecticut Business and Industry Association has provided guidance on the subject, and there are three key points:

If an employer adopts a rule requiring employees to speak only English at all times in the workplace, the EEOC will presume the rule violates Title VII because its broad reach cannot be justified and it may work to discriminate against some workers on the basis on national origin.

An English-only rule that applies only at certain times is acceptable if the employer can show that the rule is justified by “business necessity.”

An employer who has a justifiable business reason for an English-only rule that is limited to certain times must notify employees in advance of situations when speaking English is required because of such business necessity.(Source: Connecticut Business and Industry Association, “Can You Require Employees to Only Speak English on the Job?”)

Here, the teacher has reasons for imposing the rule similar to the “business necessity” that may justify English-only rules in the workplace (such as when dealing with customers). Moreover, English-only rules have been adopted in classrooms for educational reasons. The educational merit of such rules has been studied and debated. See, e.g., Shvidko, “Learners’ Attitudes Toward ‘English-Only’ Institutional Policies: Language Use Outside the Classroom,” ERIC (2017). However, the debate is centered on the efficacy of such rules, not whether they are permitted. ¡De nada!

*Please note that this program is scheduled for 1 hour, but we have allotted an additional 1/2 hour for Q&A if required.

]]>https://www.ctschoollaw.com/2019/03/webinar-employer-provided-parking-under-the-new-ubti-rules-for-non-profits/Private Schools Sue to Halt Curriculum Inspectionshttp://feedproxy.google.com/~r/shipmanschoollaw/~3/NRyto9NWVZk/
Mon, 11 Mar 2019 20:23:08 +0000https://www.ctschoollaw.com/?p=8543Private schools in New York recently filed a lawsuit to stop enforcement of the state’s new curriculum inspection guidelines, released this past November. Under the new guidelines, district officials will conduct regular curriculum inspections of private schools. The inspections are … Read more]]>Private schools in New York recently filed a lawsuit to stop enforcement of the state’s new curriculum inspection guidelines, released this past November. Under the new guidelines, district officials will conduct regular curriculum inspections of private schools. The inspections are designed to ensure that private schools provide “substantially equivalent instruction” to that in public schools.

In the past, such inspections were triggered by complaints to education authorities. Under the new rules, district officials will begin to conduct regular curriculum inspections this year.

New York’s highest court struck down an attempt by the legislature to delegate authority to the department to regulate or license independent schools back in the 1940s. As asserted by the plaintiffs today, the court’s ruling in that case was clear: any attempt by the department to regulate independent schools is unconstitutional unless it is based on a legislative statute that gives the department regulatory authority and instructions. The plaintiffs argue that the legislature passed no such statute here and the department’s new regulatory scheme is therefore unconstitutional.

The plaintiffs further argue that the department has not yet provided district officials with a clear standard regarding what constitutes “substantially equivalent” instruction. Instead, the standards “must be gleaned from a series of changing and sometimes contradictory public communications issued by the Department.” The lack of guidance can leave district officials with substantial discretion in deciding whether an independent school is providing substantially equivalent instruction.

The new scheme thus jeopardizes the academic freedom of nearly 1,800 nonpublic schools in New York. In an interview with The Wall Street Journal, Mark Lauria, the executive director of the New York State Association of Independent Schools, said the new regulations “cut to the core of what our schools do.” Indeed, a school’s ability to design its own curriculum is central to its independence.

Nonetheless, the inspections are scheduled to begin this year and reoccur every five years. In between reviews, the district official is expected to “keep abreast of important information, such as changes in leadership, curriculum, school building locations, grade levels served, etc.”

If an independent school is found non-compliant, it will effectively be closed by the department. After a preliminary finding that an independent school is not providing substantially equivalent instruction, the school has a brief period to address the board’s concerns. If the school is still found non-compliant, parents will have thirty days to transfer their children to a different school, and students who continue to attend the non-compliant school will be deemed “truant.”

As detailed by this recent lawsuit, independent schools in New York face substantially increased curriculum oversight. We are watching the case closely for important updates. In the meantime, please find the related Wall Street Journal article here for more information. (Please note a subscription is required.)

]]>https://www.ctschoollaw.com/2019/03/private-schools-sue-to-halt-curriculum-inspections/SEE YOU IN COURT! – March 2019http://feedproxy.google.com/~r/shipmanschoollaw/~3/1FA_jeNUFs4/
Fri, 01 Mar 2019 13:32:05 +0000https://www.ctschoollaw.com/?p=8538As the Nutmeg Board of Education was preparing to reconvene into open session after completing its executive session discussion last week, veteran Board member Bob Bombast told the Board to hold up because he had a concern.

]]>As the Nutmeg Board of Education was preparing to reconvene into open session after completing its executive session discussion last week, veteran Board member Bob Bombast told the Board to hold up because he had a concern.

Mr. Chairperson recognized Bob, “OK, Bob, but it’s late so keep it short.”

Bob thanked Mr. Chairperson and explained, “I heard from a friend that Tom Teacher has been on Facebook trashing the Board. I want to know what Mr. Superintendent is going to do about it.”

Mr. Superintendent looked puzzled. “I have no idea what you are talking about. I have better things to do than to monitor the social media accounts of the 500 teachers in Nutmeg. Who’s this ‘friend’ talking about Tom Teacher behind his back? And what is Tom Teacher supposed to have said?”

“I am not going to reveal my source,” Bob responded. “But he told me that Tom Teacher has posted on Facebook that the members of the Nutmeg Board of Education are idiots and that Mr. Chairperson couldn’t find Robert’s Rules of Order with both hands and a flashlight.”

Now Mr. Chairperson shared Bob’s concern. “We need to get to the bottom of this. Mr. Superintendent, I want you to meet with Tom Teacher ASAP and report back to the Board. It’s bad enough that we have to put up with parents slamming us on social media. But we don’t have to let our own employees take shots as well.”

Mr. Superintendent wasted no time. The next day, he called Tom Teacher down to the central office and laid it on the line. “We have it on good authority that you have been insulting the Board on your Facebook page. I am directing you to sign on to your Facebook account so I can see just how bad it is.”

Tom smirked at the directive, but he complied. Soon, Mr. Superintendent was leaning over Tom’s shoulder and reading Tom’s Facebook page. “So, it’s true!” he exclaimed. “Your posts are just as bad as I thought.” Mr. Superintendent then placed Tom on leave and printed out the offensive posts.

Mr. Superintendent had the posts scanned, and he sent them by email to the Board members. However, before Mr. Superintendent could follow up with a call to Mr. Chairperson, the phone rang. The President of the Nutmeg Union of Teachers was on the line. She explained that she did not agree with Tom’s rants on Facebook, but she asked Mr. Superintendent to drop the matter and return Tom Teacher to duty.

“Tom Teacher has the right to express his opinion about the Board members and to share it with the world. Remember the First Amendment?” she chided.

Mr. Superintendent reflected on whether he would rather fight with Tom Teacher and NUTS or with the Board members who employ him, and he chose the former. “Sorry, but we cannot put up with teachers undermining the good work of the Board of Education. Tell Tom Teacher that he has twenty-four hours to submit his resignation or I will initiate termination proceedings,” he responded.

The problem started when Bob Bombast talked about Tom Teacher during the executive session. That discussion was improper because the topic was not on the agenda. Moreover, the Board never notified Tom that it would discuss his employment in executive session. Boards of education (and other public agencies) have the right to discuss the “appointment, employment, performance, evaluation, health or dismissal” of their employees and other public officials (including themselves) in executive session. However, the individual discussed has the right to require that the discussion as to him or her be held in open session, and public agencies are thus required to notify the individual in advance of the discussion to permit him or her to exercise this right.

Mr. Superintendent also violated a relatively new right employees have. In 2015, the General Assembly enacted Conn. Gen. Stat. § 31-40x, which provides in relevant part that employers generally may not “(2) Request or require that an employee or applicant authenticate or access a personal online account in the presence of such employer.” Persons whose rights are violated may file a complaint with the Connecticut Department of Labor, which has the right to “levy against the employer a civil penalty of up to five hundred dollars for the first violation and one thousand dollars for each subsequent violation, and (2) award such employee all appropriate relief including rehiring or reinstatement to his or her previous job, payment of back wages, reestablishment of employee benefits or any other remedies that the commissioner may deem appropriate.” Conn. Gen. Stat. § 31-40x(g).

Finally, Tom’s comments on his Facebook page are protected speech under the First Amendment. In considering the free speech rights of public employees, we start by separating speech “pursuant to duty” from speech more generally. One speaks “pursuant to duty” when fulfilling one’s job responsibilities, and the United States Supreme Court has ruled that such speech is not subject to First Amendment protections. If Tom had described the Board members as “idiots” at a Back-to-School Night, for example, that speech would not be protected, and Tom would be subject to discipline (though termination for a first offense would likely be too extreme).

By contrast, when a public employee engages in speech as a private individual, he or she has First Amendment protection, subject to the following. First, the speech must relate to a public concern; speech regarding private, personal grievances is not protected. Here, the cognitive ability of the members of the Nutmeg Board of Education is a matter of public concern on which Tom was free to comment.

Second, the courts will apply a balancing test to determine whether such speech is protected by the First Amendment, i.e., the courts will consider whether the importance of the speech outweighs its disruptive impact. Most such speech is not truly disruptive at all. A common concern regarding disruption, however, is whether the speech will affect close working relationships. Given that concern, Mr. Superintendent, for example, should certainly keep his opinion on the Board members’ cognitive ability to himself. However, Tom does not work directly with the Board, and his harsh judgment will not be disruptive of district operation. As such, it is protected speech.

]]>https://www.ctschoollaw.com/2019/03/see-you-in-court-march-2019/Webinar: Employee Parking and the New UBTI Ruleshttp://feedproxy.google.com/~r/shipmanschoollaw/~3/RtVpE6M3cF4/
Fri, 01 Mar 2019 13:30:40 +0000https://www.ctschoollaw.com/?p=8530Shipman & Goodwin exempt organization tax attorney Ray Casella will present an informative webinar and lively discussion where he will answer questions about school tax obligations for employee and teacher parking and the new UBTI rules. The presentation will begin … Read more]]>Shipman & Goodwin exempt organization tax attorney Ray Casella will present an informative webinar and lively discussion where he will answer questions about school tax obligations for employee and teacher parking and the new UBTI rules. The presentation will begin with a short explanation of UBTI, followed by relevant examples from the IRS. Schools will come away with answers to questions about UBTI including:

Why do we have it?

How do we comply with it?

How do we minimize it?

This program is being offered to an audience of Connecticut Conference of Independent Colleges (CCIC) member schools.

I am an assistant principal at a middle school. The other day I was in the teachers’ lounge shooting the breeze with a teacher who is active with our local teachers union. I told him that we really need to change the teacher evaluation program because its inflexible rating system permits mediocre teachers to skate through. I was not surprised by his vehement response (and maybe I was baiting him a little bit). But I was surprised by his claim that I should give up because the union would never agree to change the evaluation plan.

Does the union really have the right to prevent us from changing our evaluation plan? I would hate to waste my time advocating changes in the plan if the union really has a veto right over the wonderful changes that I would like to recommend.

Thank you,What Me Judgmental?

Dear Judgmental:

The local teachers union has a role to play in the development, review, and revision of the teacher evaluation and support program. But the applicable statutes give the board of education the final say over the teacher evaluation and support program. Consequently, do not be discouraged by predictions of a union veto. If you have concerns about the current teacher evaluation plan, share those concerns with the professional development and evaluation committee, which should be operating in your district. In addition, share your concerns with your superintendent. The statutes contemplate that your district’s teacher evaluation and support program should be reviewed and revised regularly and, in undertaking that review, the professional development and evaluation committee should have the benefit of concerns and suggestions that you and others who must implement the plan may have.

The development of the teacher evaluation and support program starts with the appointment of the professional development and evaluation committee. Conn. Gen. Stat. § 10-220a(b) sets out requirements for the appointment of this committee:

Such professional development and evaluation committee shall consist of (1) at least one teacher, as defined in subsection (a) of section 10-144d, selected by the exclusive bargaining representative for certified employees chosen pursuant to section 10-153b, (2) at least one administrator, as defined in subsection (a) of section 10-144e, selected by the exclusive bargaining representative for certified employees chosen pursuant to section 10-153b, and (3) such other school personnel as the board deems appropriate.

As you will note, the board of education must include at least one teacher chosen by the teachers’ union and one administrator chosen by the administrators’ union, but the board of education can otherwise determine who sits on this committee. Moreover, Conn. Gen. Stat. § 10-153d(b) expressly provides that boards of education do not have to negotiate with the teachers (or administrators) union over “the development or adoption of teacher evaluation and support programs, pursuant to section 10-151b.”

Conn. Gen. Stat. § 10-151b describes how the teacher evaluation and support program must be developed. In the first instance, the program may be adopted by mutual agreement between the professional development and evaluation committee and the board of education. Thus, if the committee proposes an effective program, the board of education can simply adopt the program. However, the board need not accept whatever program the professional development and evaluation committee comes up with. If it does not wish to accept the program as presented, the board of education can ask the professional development and evaluation committee to adopt the model teacher evaluation program adopted by the State Board of Education. Moreover, if the professional development and evaluation committee does not wish to accept the model program, the board of education has the final authority to adopt a teacher evaluation and support program, as long as it is consistent with the guidelines for teacher evaluation and support adopted by the State Board of Education in accordance with Conn. Gen. Stat. § 10-151b(c).

Significantly, the adoption of a teacher evaluation and support program is not the end of the story. In describing the duties of the professional development and evaluation committee, Conn. Gen. Stat. § 10-220a(b) provides that the committee shall “participat[e] in the development or adoption of a teacher evaluation and support program for the district, pursuant to section 10-151b,” and it further provides that the duties of the committee include developing a professional development plan that provides for the “ongoing and systematic assessment and improvement of both teacher evaluation and professional development of the professional staff members of each such board.” Accordingly, the committee should be reviewing the teacher evaluation and support program annually, and you should share your suggestions for improving the plan with both the committee and the superintendent.

Finally, while you and others work to improve your district’s teacher evaluation and support program, you must be careful to comply with the requirements of the program that is in place. Conn. Gen. Stat. § 10-151b(a) provides that “Claims of failure to follow the established procedures of such teacher evaluation and support program shall be subject to the grievance procedure in collective bargaining agreements negotiated subsequent to July 1, 2004.” You are clearly judgmental in the best sense of the word, and you want the evaluations that you conduct to be effective. By assuring that you follow the procedural requirements of your local plan, you will avoid having your good work be subject to challenge through the grievance procedure.

]]>https://www.ctschoollaw.com/2019/02/cas-legal-mailbag-question-of-the-week-2-27-2019/In Case You Missed It: The Nuts and Bolts of Student Handbooks for Independent Schoolshttp://feedproxy.google.com/~r/shipmanschoollaw/~3/BDNp1o33Yak/
Wed, 27 Feb 2019 16:01:30 +0000https://www.ctschoollaw.com/?p=8521In case you missed our February 26th webinar on student handbooks for independent schools, click here to access the recorded webinar in its entirety.

Student handbooks are essential documents for independent schools, and it is important for them to … Read more

]]>In case you missed our February 26th webinar on student handbooks for independent schools, click here to access the recorded webinar in its entirety.

Student handbooks are essential documents for independent schools, and it is important for them to be up to date and reflective of school policies. This webinar provides an overview of key provisions that should be included in your school’s student handbook along with other recommended best practices and emerging trends, including a discussion of issues related to searching cell phones, vaping, establishing appropriate disciplinary processes and defining the scope of the school’s jurisdiction over student misconduct.

]]>https://www.ctschoollaw.com/2019/02/in-case-you-missed-it-the-nuts-and-bolts-of-student-handbooks-for-independent-schools/Providing an Effective Learning Environment: An In-Depth Discussion of Emerging Issues in Classroom Managementhttp://feedproxy.google.com/~r/shipmanschoollaw/~3/uFj4N9pKRaY/
Fri, 22 Feb 2019 13:00:37 +0000https://www.ctschoollaw.com/?p=8510Today’s classrooms place considerable importance on providing environments conducive to learning. Issues surrounding disruptive behavior, student and staff safety, anonymous reporting, and student-initiated electronic monitoring are becoming more prevalent, and now more than ever, school administrators are evaluating their approach … Read more]]>Today’s classrooms place considerable importance on providing environments conducive to learning. Issues surrounding disruptive behavior, student and staff safety, anonymous reporting, and student-initiated electronic monitoring are becoming more prevalent, and now more than ever, school administrators are evaluating their approach to classroom management.

Join Shipman & Goodwin school law attorneys for this timely workshop providing a discussion of the emerging issues in this rapidly evolving space, including an analysis of recent legislation and legal requirements. Presenters will provide an in-depth review of topics including:

As an assistant principal at a large high school, it falls to me to classify absences for the purpose of the “chronic absenteeism” calculation we must do. We have our challenges at my school, and we are always close to being a school with chronic absenteeism. As you must know, if my school is so categorized, we are obliged to have an attendance review team. As far as I am concerned, we should just create such a team and be done with it. However, my principal doesn’t want to do anything he doesn’t have to do. So he has asked me to track this obligation carefully and let him know if we must have an attendance review team at my school.

Well, easier said than done. We also have our share of disciplinary issues at my school and, in any given week, there may be from two to five students out on suspension. It seems unfair to me to consider those students “absent.” After all, on the one hand, if they came to school after being suspended, they would get in more trouble. On the other hand, they are not in school, are they? So, Legal Mailbag, what’s the right answer?

Thank you,Definitional Dilemma

Dear Dilemma:

As you correctly observe, students who are on suspension are required to be out of school. Nonetheless, for purposes of determining how many “chronically absent children” attend your school, you must count such students as absent.

Conn. Gen. Stat. § 10-198c(a)(1) defines a “chronically absent child” as an enrolled student who is absent from school more than ten percent of the school days at any time in the school year. If fifteen percent or more of the students in your school are “chronically absent,” your school must have an attendance review team, which is responsible for “reviewing the cases of truants and chronically absent children, discussing school interventions and community referrals for such truants and chronically absent children and making any additional recommendations for such truants and chronically absent children and their parents or guardians. Each attendance review team shall meet at least monthly.” Conn. Gen. Stat. § 10-198a(b)(2).

The “school chronic absenteeism rate” is defined as “the total number of chronically absent children for a school in the previous school year divided by the total number of children enrolled in such school for such school year.” That’s a simple mathematic calculation, but only if you know when you should consider a child to be “absent.” Fortunately (at least in terms of the calculation), the statute is clear on this point. Conn. Gen. Stat. § 10-198a(a)(2) provides: “(2) “Absence” means (A) an excused absence, unexcused absence or disciplinary absence, as those terms are defined by the State Board of Education pursuant to section 10-198b, or (B) an in-school suspension, as defined in section 10-233a, that is greater than or equal to one-half of a school day.” (Emphasis added). Thus, when a student is suspended (or even in in-school suspension for one-half the school day or more), that student is “absent” for the purposes of the “chronic absenteeism” calculation.

School officials also have an obligation to determine whether students are “truant,” and that happens when a student has more than four unexcused absences in a month or more than ten unexcused absences in a year. To provide guidance to school officials who must make that determination, the State Board of Education has adopted definitions of “excused absences,” “unexcused absences” and “disciplinary absences.” Connecticut State Department of Education, Guidelines for Implementation of the Definitions of Excused and Unexcused Absences and Best Practices for Absence Prevention and Intervention (April 2013). Interestingly, disciplinary absences are expressly excluded from the calculation of unexcused versus excused absences, and thus such absences do not count in determining whether a student is “truant.”

In sum, for purposes of determining whether a student is “chronically absent,” you must include absences that result from disciplinary action. However, for purposes of determining whether a student is “truant,” you may not include absences that result from disciplinary action. Legal Mailbag has no idea why you were confused.